ELR Citation: ELR 20201
No(s). CV 90-142-M-CCL (D. Mont. Jan 15, 1991)

The court holds that an environmental group is not entitled to emergency injunctive relief to restrain the shooting of bison outside the boundaries of Yellowstone National Park pending completion of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The court finds that the group has standing to sue based not on the basis of psychological injury, as the circuit court held, but on the basis of organization standing. An organization has standing where its interest in the issue is based on an agreement between it and the United States, and frustration of that claimed agreement gives rise to litigation. Nonetheless, the court holds that the principles of res judicata and collateral estoppel bar the suit. The same parties, lawyers, and judge have grappled with these same issues before. The addition of new defendants does not entitle the group to file the same suit a second time. Even assuming that the group is not precluded from relitigating its claims against the United States, it is barred by collateral estoppel, or issue preclusion, from litigating these same claims against the federal defendants as well as the state of Montana. The court holds that the group is precluded from relitigating the question of whether NEPA has been complied with, because the relevant facts and law have not changed. An interim policy set forth to protect Montana and its citizens while the agencies work out a long-term bison management plan is identical to the plan challenged in 1985. The court holds that even if the group's action were not barred by principles of res judicata and collateral estoppel, the group cannot demonstrate that it will succeed on the merits of its claims. Documents prepared in 1985 and 1990 carefully considered the crucial factors and the various alternatives to manage the bison while a long-range plan is being developed, and reasonably concluded that the bison must be controlled now to protect the health, welfare, and safety of persons and livestock outside the park. The group has alleged no facts showing that the actions under the interim policy may significantly degrade some human environmental factor. Thus, the court concludes that the group cannot show probable success on the merits, irreparable harm, or that its suit is in the public interest. The court also concludes that the state is not required to prepare an EIS under NEPA, which is a federal law that tells federal agencies what they must do. Further, neither Congress nor the state has waived the state's immunity or the immunity of its officials acting in their official capacities.

[A prior decision in this litigation is published at 22 ELR 21194.]

Counsel for Plaintiff
Noel K. Larrivee
Larrivee Law Office
334 E. Broadway, Missoula MT 59802
(406) 721-1234

Counsel for Defendants
R.J. Sewell Jr., Lewis K. Smith
Smith Law Firm
P.O. Box 604, Helena MT 59624
(406) 442-2980

LOVELL, District Judge